Revised Flood Hazard Area Control Act & Stormwater Rules to be Proposed on December 2, 2022

November 10, 2022 | No Comments
Posted by Steven M. Dalton

The New Jersey Department of Environmental Protection (“DEP”) has pre-released proposed amendments to its flood hazard and stormwater management rules. These amendments relate only to fluvial flood hazard areas, and are being proposed by DEP in place of the emergency flood hazard rules that were anticipated, but never released, in June 2022. DEP will proceed with formal rulemaking subject to notice and opportunity for public comment, and announced it is targeting the second quarter of 2023 for the amendments to be adopted and made effective. Tidal flood hazard areas will be addressed in a separate rule proposal.

Some of the most significant proposed changes are outlined below.

1. New increased rainfall projections must be used for designing stormwater management facilities and determining calculated base flood elevations. These rainfall numbers are based on projections of rainfall for the year 2100 and a 17% chance that this rainfall will occur.

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NJDEP Publishes New PFAS Standards

October 19, 2022 | No Comments
Posted by David J. Miller

On October 17, 2022, the New Jersey Department of Environmental Protection (“DEP”) published interim soil remediation standards for several hazardous substances often characterized as “emerging contaminants.”  Specifically, DEP established interim standards for perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA), hexafluoropropylene oxide dimer acid and its ammonium salt (GenX), perfluorooctanoic acid (PFOA), and perfluorooctane sulfonate (PFOS).  Among these are so-called “Forever Chemicals” – namely, perfluoroalkyl substances (PFAS), a family of over 4,700 compounds that do not occur naturally and do not readily degrade over time.  The new soil remediation standards include criterion based on various exposure pathways for substances included in the rulemaking.

The interim remediation standards were published in the New Jersey Register on October 17, 2022 and can be reviewed in full here.  DEP advises that it considers the interim standards to be in effect for all current and future site remediation cases in New Jersey.  Parties conducting remediation or environmental due diligence in connection with the potential acquisition of property in New Jersey should consult their environmental professionals regarding the impact of the new standards.

NJDEP Announces FHA Emergency Rulemaking

May 25, 2022 | No Comments
Posted by Linda M. Lee

At a Stakeholder meeting on May 25, 2022, the New Jersey Department of Environmental Protection (“NJDEP”) announced emergency rulemaking for the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13 et seq.

The emergency rules will, amongst other things, raise the requirement for design flood elevation in a fluvial flood hazard area.  It raises the Design Flood Elevation by two (2) feet, (will expand the flood plain and require that first floors of all buildings in the flood plain be DEP base flood elevation plus 2’ and from the FEMA 100 year elevation plus 3 feet), and will incorporate the new precipitation projections (year 2100) into stormwater best management practices (“BMP”) designs, which will impact the sizing of stormwater management systems. Any construction must meet the FEMA NFIP standards and relevant sections of the Uniform Construction Code.  Also, existing Verifications, without a related permit, may no longer be valid.  This increase in elevations may also impact the feasibility of a project, because of access issues.  All floodways should remain the same.

NJDEP will not commit to exactly when the emergency Rule will be adopted.  NJDEP intends to adopt the emergency rules in mid-June and recommends that any applications that may be impacted be submitted to NJDEP by Friday, June 10, 2022 in order to remain subject to the existing rules.  That application must be deemed complete upon submission.

If the project is now not within the regulated flood plain, but is within the regulated flood plain under the emergency rules, you must be in construction to be exempt from the emergency rules.  If you have a permit for the construction, you can rely on that permit.  The stormwater provisions would rely on Section 1.6 of the stormwater rules as to whether they will have to comply with the new precipitation projections.

The attorneys at Giordano, Halleran & Ciesla are continuing to monitor this developing situation and stand ready to answer any questions and assist.

The DEP Must Adequately Explain its Administrative Decisions to Avoid Remand

December 7, 2021 | No Comments
Posted by Afiyfa H. Ellington

In In re Flood Hazard Area Verification (Riparian Zone Only) File No. 2105-04-0002.1FHA1870001 et al, Superior Court of New Jersey, the Skylands Preservation Alliance (SPA) appealed from the State of New Jersey Department of Environmental Protection (DEP)’s issuance of a Riparian Zone Only Verification (RZOV) for a unnamed tributary stream of the Musconetcong River to the owners of a 112 acre parcel of property wherein they sought to construct a commercial warehouse. The owners verified that there was no flood hazard under the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to -103.

DEP initially concluded that a flood hazard area verification was required to determine the stream’s flood hazard area elevation. However, shortly thereafter, DEP determined that a flood hazard area permit was not required for development due to the vertical elevation change between the proposed grading of the grounds of the proposed structure and the stream. DEP issued the RZOV.

While the Appellate Division affirmed the DEP’s determination that SPA lacked standing as a third-party to challenge the RZOV, the Appellate Division determined that DEP’s decision to about face on the necessity of a flood hazard area verification without a detailed explanation for its administrative decision or offer an opportunity for public comment was arbitrary, capricious and unreasonable. The Appellate Division remanded for further proceedings before the DEP and held that the DEP’s decision following the proceedings is also appealable.

GH&C Secures Appellate Division Victory – Court Clarifies Options for Challenging State Agency Actions

June 29, 2021 | No Comments
Posted by David J. Miller

Recently, Giordano, Halleran & Ciesla, P.C. (“GH&C”) attorneys successfully defended a challenge to a client’s development approvals in the New Jersey Appellate Division. In its decision, the Court clarified the options available to parties seeking to challenge permits issued by the New Jersey Department of Environmental Protection (“DEP”) and other agencies.

The case involved a homeowners’ association’s (the “HOA”) attempt to overturn certain DEP approvals at a neighboring development site. After the approvals were issued, the HOA requested that DEP hold an adjudicatory hearing to consider the HOA’s allegations that the approvals were improperly granted. DEP denied the hearing request on the basis that the HOA did not have a “particularized property interest” as required to challenge such an approval as a third party. The HOA appealed the denial of the hearing request to the Appellate Division, but also requested that the Court review the substance of the approvals and reverse them due to alleged procedural and substantive deficiencies in the developer’s application. Importantly, the HOA did not also file a direct appeal to the Appellate Division within 45 days of DEP’s issuance of the approvals. Read more

Public Health Emergency’s End Sees DEP Public Comment Periods Scaled Back

June 23, 2021 | No Comments
Posted by Steven M. Dalton

In another step towards the return to normalcy, DEP Commissioner LaTourette took action by Administrative Order 2021-12 ending expanded public comment timeframes that had been made applicable to approvals under various DEP regulatory programs. In an action tied to the Covid-19 Public Health Emergency, DEP, by Administrative Order 2020-06, had previously implemented a 30-day extension of public comment timeframes on applications for approvals under CAFRA, wetland and flood hazard, solid and hazardous waste, and water quality and supply programs, among others. The end of the Public Health Emergency, effective June 4, 2021, eliminated the need for extended public comment timeframes. AO 2021-12 became effective June 17, 2021, repealing AO 2020-06 and ending the requirement that applicants for applicable DEP approvals extend opportunity for public comment. But for DEP’s action, extended public comment timeframes would have remained in effect until January 11, 2022 under the recent legislation and Executive Order that terminated the Covid-19 Public Health Emergency. Read more

In Unusual Move, Developer Is Awarded Attorneys’ Fees and Costs Over Town’s Settlement Breach

June 17, 2021 | No Comments
Posted by Marc D. Policastro

Co-authored by Linda M. Lee

In a win for developers, a New Jersey judge has taken the unusual step of awarding attorneys’ fees and costs for breach of a court-approved settlement over a proposed inclusive residential development.

Somerset County Superior Court Judge Kevin M. Shanahan, P.J.Cv., held that Hillsborough Township violated the settlement when its planning board failed to approve a site plan for 96 units, including 23 affordable-housing units.

Municipalities should not “be permitted to repeatedly violate a Court Order and flout its affordable housing obligations under the Constitution without sanction,” the judge wrote in his June 7 decision. Read more

NJDEP Adopts Amended Remediation Standards

June 10, 2021 | No Comments
Posted by Steven M. Dalton

The New Jersey Department of Environmental Protection (“DEP”) published notice on May 17, 2021 of its March 31, 2021 adoption of amended remediation standards set forth at N.J.A.C. 7:26D-1.1 et seq. (55 N.J.R. 775).  It also released a plethora of new and updated guidance documents intended to assist remediation professionals and responsible parties navigate the rule requirements.  The amended rules were adopted with little change from DEP’s April 6, 2020 rule proposal notwithstanding extensive substantive comment and objections by various industry groups representing parties who engage in remediation, including NJBA.  The amended remediation standards may have ramifications for persons currently engaged in remediation and, potentially, persons who previously completed a DEP regulated remediation. Read more

Governor Signs Law Ending Public Health Emergency

June 7, 2021 | No Comments
Posted by Steven M. Dalton

On June 4, 2021, in corresponding actions, Governor Murphy signed a law (A.5820) and Executive Order (EO 244) terminating the Covid-19 Public Health Emergency.  These actions leave the State of Emergency in place, but have implications for various Executive Orders and related agency administrative orders that relied upon the Public Health Emergency declared by the Governor under EO 103.

Under the new law, most Executive Orders that relied upon the Public Health Emergency will expire 30 days after the law’s effective date.  However, Administrative Orders, directives or waivers issued by a State agency in reliance upon EO 103 will expire January 11, 2022, unless they are continued, modified or revoked by the agency before that date.

For various development approvals extended by the Covid-19 Permit Extension Act (P.L. 2020, c. 53), the end of the Public Health Emergency marks the end of the “COVID-19 Extension Period”.  Approvals that qualified for protection under the PEA are afforded a “minimum” tolling of not less than 6-months now that the Covid-19 Extension Period has ended with the termination of the public health emergency.  For such approvals the beneficial tolling afforded by the PEA may be greater than 6 months depending on the overall time period that the approval’s facial duration overlapped with of the Covid-19 Extension Period.

EO 136, which tolled the timeframes for processing various DEP permits and approvals and suspended the “90 Day Law,” will sunset July 4, 2021 under the newly signed legislation.  DEP relied upon EO 136 in issuance of Administrative Order 2020-06 to extend by 30-days timeframes for public comment on applications for permits and approvals under various regulatory programs, including among others coastal, wetland and flood hazard.  Under the new legislation, AO 2020-06 will remain in effect until January 11, 2022 barring some contrary action by DEP.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. are available to assist you  with these or other developments.  Please contact Steve Dalton, Michael Gross or any of our environmental attorneys with any questions.

NJDEP Further Extends Site Remediation Timeframes – UPDATE

February 24, 2021 | No Comments
Posted by David J. Miller

Co-Authored by Linda M. Lee

On February 9, 2021, we reported that the New Jersey Department of Environmental Protection (“NJDEP”) issued a Notice of Rule Waiver/Modification/ Suspension (the “Notice”) announcing an additional extension of the statutory timeframes established by the New Jersey Site Remediation Reform Act (“SRRA”), N.J.S.A. 58:10C-1, et seq.

Since that time, NJDEP clarified that “soil only” cases subject to the 2014 and 2016 deadlines under the SRRA were not referenced in the Notice because such sites are subject to a February 6, 2019 regulatory timeframe and a February 6, 2021 mandatory timeframe to complete the remedial action. However, a request may be submitted to NJDEP by May 1, 2021 to extend the mandatory timeframe by one year to February 6, 2022. The Remedial Timeframe Notification Form needed for the extension request can be accessed HERE.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. are closely monitoring NJDEP’s response to the COVID-19 pandemic and will provide further updates as they become available.